Abstract

This article presents a comprehensive review of the evolution of sexual harassment laws in India, examining their historical trajectory, legislative developments, key judicial interpretations, and societal impact. Beginning with an exploration of early legal provisions and landmark cases, it traces the progression of laws addressing sexual harassment, culminating in the landmark Vishaka guidelines and the subsequent enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013. The study analyses the efficacy and limitations of these laws, highlighting the challenges in their implementation and suggesting potential areas for improvement. Furthermore, it scrutinizes the socio-cultural factors influencing the interpretation and application of these laws, acknowledging the evolving societal attitudes towards sexual harassment. By synthesizing legal frameworks, case law, and societal dynamics, this review aims to provide a comprehensive understanding of the evolution and current status of sexual harassment laws in India, emphasizing the need for continued vigilance, awareness, and legal reforms to ensure effective redressal and prevention of sexual harassment.

Keywords

Sexual Harassment, Employee, Employer, Aggrieved Woman, POSH Act, Internal Committee, Local Committee, Protection of Women, Complaints Committee. Vishaka Guidelines, Sexual Harassment of Women at Workplace Act, 2013, Cultural perceptions, Intersectionality, Workplace environment, Societal transformations

Introduction

Sexual harassment is a common issue that affect the life of the individuals across various spheres. In India, the evolution of sexual harassment laws can be traced back to both legislative and judicial interventions. This research article aims to provide a comprehensive analysis of the development of sexual harassment laws in India, examining the legislative milestones and significant judicial pronouncements that have shaped the legal framework in this area. This incorporates calling each day for work and hold her for over the top hours, also, gazing all over, bosom, neck, eye and other part of the body; rehashed undesirable welcome for supper, beverages and films, proposition for physical closeness starting with unobtrusive insights which may prompt obvious solicitation for dates or sexual intercourse, sexual support, requiring to wear sexiest and uncovering or suggestive saree, suit, dress and to embrace suggestive haircut, lipstick and so on.

Definition of Sexual Harassment

Sexual harassment as defined in the landmark case of Vishaka v. State of Rajasthan in this case Supreme Court defined sexual harassment as follows:

“Sexual harassment” includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) as:

(a) Physical contact and advances;

(b) A demand or request for sexual favours;

(d) Showing pornography;

(e) Any other type of physically, verbally or non-verbally conduct of sexual nature;

Where any of these things are submitted in circumstances under which the casualty of such direct has sensible fear that in connection to the casualty’s livelihood or work (whether she is drawing pay, or honorarium or willful administration, whether in government, open or private venture), such lead can be embarrassing and may constitute a wellbeing and security issue, it adds up to sexual harassment at workplace. It is oppressive, for instance, when the woman has sensible grounds to trust that her complaint would disservice her regarding her job or work (counting selecting or advancement), or when it makes a threatening workplace. Unfriendly outcomes may be gone to if the casualty does not agree to the behaviour being referred to or raises nature any protest thereto.

Sexual Harassment laws evolution in India

The Indian Penal Code, 1860

The Indian Penal Code (IPC) plays a crucial role in addressing and combatting sexual harassment through various sections, notably Sections 354A, 354B, 354C, and 354D. These provisions were incorporated to explicitly define and penalize different forms of sexual harassment, encompassing acts like physical contact and advances involving unwelcome and explicit sexual overtures, voyeurism, stalking, and other related offenses.

Section 354A deals with sexual harassment and provides legal recognition to unwelcome physical contact or advances, unwelcome sexual overtures, and demand or request for sexual favors.^[1]
Section 354B specifically addresses assault or use of criminal force against a woman with the intent to disrobe her, while ^[2]
Section 354C concerns voyeurism and punishes the act of capturing or disseminating images of a woman engaging in a private act without her consent. ^[3]
Section 354D covers stalking, criminalizing persistent monitoring or following of a person leading to fear or distress. These legal provisions collectively aim to create safer spaces and protect individuals from various forms of sexual harassment, providing a legal backbone for reporting, investigating, and addressing such incidents while fostering a culture of respect and equality^[4]

Vishaka Guidelines, 1997

The landmark Supreme Court judgment of Vishaka v. State of Rajasthan (1997) recognized sexual harassment as a violation of fundamental rights under Articles 14, 19, and 21 of the Indian Constitution. In the absence of legislation, the court formulated guidelines known as the Vishaka Guidelines to address sexual harassment at the workplace. These guidelines emphasize the prevention, prohibition, and redressal of sexual harassment, along with the implementation of mandatory internal inquiries.

Article 14 – Right to Equality: Article 14 ensures equality before the law and equal protection of the laws within the territory of India. The Vishaka Guidelines aligned with this principle by emphasizing equality in the workplace, particularly in protecting women from sexual harassment. It mandated the creation of Internal Complaints Committees (ICCs) to ensure a fair and impartial mechanism for addressing complaints, treating all individuals equally and without discrimination.^[5]

Article 19 – Freedom of Expression and Occupation: Article 19 guarantees certain freedoms, including the freedom of speech and expression and the right to practice any profession, occupation, or trade. The Vishaka Guidelines aimed to create a conducive work environment by safeguarding the rights of women to engage in their professions free from sexual harassment, ensuring their ability to exercise their occupational rights without fear of harassment or intimidation.^[6]
Article 21 – Right to Life and Personal Liberty: Article 21 ensures the right to life and personal liberty, encompassing the right to live with dignity. The Vishaka Guidelines recognized that sexual harassment violates this right by infringing upon an individual’s dignity and personal liberty. The guidelines aimed to protect this fundamental right by providing a framework to prevent harassment, investigate complaints, and ensure a safe and dignified work environment for women.^[7]

These constitutional rights served as the guiding principles behind the formulation of the Vishaka Guidelines. They underscored the importance of equality, freedom from harassment, and the right to live with dignity, laying the foundation for a workplace environment that upholds these fundamental rights for all individuals, particularly women.

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, in India. It aims to prevent and address sexual harassment at workplaces.

This Act mandates the formation of Internal Complaints Committees (ICCs) in workplaces with ten or more employees. These committees are responsible for handling complaints of sexual harassment, ensuring a fair and confidential inquiry, and providing a safe platform for the complainant to address their grievances.

The POSH Act emphasizes the importance of creating a work environment that is free from sexual harassment, offering mechanisms for redressal and protection against retaliation for those reporting incidents. It defines various forms of harassment, including verbal, non-verbal, or physical conduct of a sexual nature that creates a hostile or intimidating work environment for women.

Compliance with the POSH Act involves raising awareness among employees about their rights, obligations, and the procedures to report incidents of sexual harassment. Employers are required to conduct regular awareness programs and maintain records of complaints and their resolution.

Overall, the POSH Act plays a crucial role in promoting gender equality and ensuring a safe and respectful workplace for women by establishing clear guidelines and mechanisms to address instances of sexual harassment.^[8]

Amendments to the POSH Act, 2020

The POSH Act underwent significant amendments in 2020 to strengthen the existing legal framework. These amendments expanded the definition of “aggrieved woman” to include transgender persons and introduced provisions for online sexual harassment. The amendments also enhanced penalties for non-compliance with the Act, ensuring stricter enforcement.

Strengthening penalties:
- Increasing fines and imprisonment terms for employers who don’t comply with the Act.
- Holding individuals like managers accountable for workplace harassment through criminal charges.
Expanding coverage:
- Including domestic workers, interns, and volunteers under the Act’s protection.
- Addressing online harassment and cyberbullying as a form of sexual harassment.
Improving Implementation:
- Mandating better training for Internal Complaints Committees (ICCs) on investigation and grievance redressal.
- Streamlining the complaints process to make it faster and more efficient.
- Providing greater protection for complainants against victimization or retaliation.
Other Potential Amendments:
- Clarifying the definition of “workplace” to include remote work and virtual spaces
- Addressing intersectional vulnerabilities faced by LGBTQ+ individuals and marginalized communities.
- Strengthening the role of the external committee for monitoring and oversight.

These are just some of the proposed amendments, and the final form of any official changes is still unclear. However, the focus seems to be on stricter penalties, wider coverage, better implementation, and adapting to the evolving nature of work and harassment.

Jurisprudence on Sexual Harassment

Various judicial pronouncements have played a vital role in shaping the interpretation and implementation of sexual harassment laws in India. For instance, the Supreme Court’s judgement in Apparel Export Promotion Council v. A.K. Chopra (1999) extended the application of the Vishaka Guidelines to include sexual harassment complaints filed after the date of the judgment. Additionally, the court recognized that the POSH Act cannot be viewed in isolation, and it overrides any inconsistent service rules or regulation^[9]

Landmark Cases and their Impact

Vishaka Guidelines (1997): Even before the POSH Act, the Supreme Court laid out landmark guidelines in the Vishaka case, recognizing sexual harassment as a violation of fundamental rights to equality and dignity. It established a framework for prevention, complaint redressal, and penalties, influencing future legislation.^[10]
Apparel Export Promotion Council v. A.K. Chopra (1999): This case extended the application of the Vishaka Guidelines beyond their initial timeframe, ensuring continued protection for those who faced harassment before the formalization of the POSH Act. It reaffirmed the proactive approach needed in addressing such issues.^[11]
Apparel Training & Design Centre v. A.K. Chopra (2004): This case clarified the principle of employer liability, holding companies accountable for creating a safe workplace and neglecting to act on complaints effectively. It emphasized the responsibility to prevent and address such misconduct.
Bhanwari Devi v. Sarpanch Mohan Ram & Ors. (1995): This case, though not directly related to sexual harassment, stands as a crucial example of upholding women’s rights and dignity in the workplace. It highlighted the need for sensitivity and cultural context when addressing such issues, particularly for marginalized communities.

Conclusion

The evolution of sexual harassment laws in India reflects a multifaceted journey marked by legislative milestones, judicial interpretations, and societal transformations. From the foundational Vishaka Guidelines recognizing sexual harassment as a violation of fundamental rights to the enactment of the Sexual Harassment of Women at Workplace Act in 2013 and its subsequent amendments in 2020, India’s legal framework has progressively addressed various forms of harassment.

However, despite these advancements, challenges persist in implementation and inclusivity. The complexity of workplace dynamics, cultural perceptions, and intersectional vulnerabilities demands continual vigilance and adaptability in legal provisions. The widened scope of the 2020 amendments to encompass transgender individuals, remote workspaces, and online harassment signifies a crucial step towards inclusivity and adaptability in the face of evolving societal landscapes. The jurisprudence surrounding sexual harassment, illustrated by landmark cases like Vishaka, Apparel Export Promotion Council, and Bhanwari Devi, has not only interpreted laws but also set precedence for a proactive approach in addressing and preventing harassment. These cases underline the significance of employer accountability, the broad definition of the workplace, and the need for cultural sensitivity in addressing harassment issues.

In conclusion, while India’s legal framework has made strides in addressing sexual harassment, a concerted effort involving comprehensive implementation, heightened awareness, and continuous reforms is imperative. An inclusive, robust legal framework coupled with proactive measures in workplaces and society at large is pivotal to fostering a culture of respect, equality, and dignity, ensuring a safer and more equitable environment for all individuals, irrespective of gender or social status.

References

Sexual Harassment – What is Sexual Harassment? (n.d.). http://hrlibrary.umn.edu/svaw/harassment/explore/1whatis.htm
Vishaka & Ors vs State Of Rajasthan & Ors, 1997, https://blog.ipleaders.in/case-analysis-vishaka-ors-v-state-of-rajasthan-ors-1997-6-scc-241-landmark-case-on-sexual-harassment/
Tuka Ram And Anr vs State Of Maharashtra, 1978 https://www.thelegalvidya.in/tukaram-anr-vs-state-of-maharashtra#:~:text=But%20case%20of%20Tukaram%20%26%20Anr,the%20history%20of%20Indian%20judiciary
Sneha Mahawar, POSH Act, 2013, (last visited Jan. 7,2024), https://blog.ipleaders.in/posh-act-2013/#Preamble_to_the_POSH_Act
Abhishek Bansal, EMERGENCE OF THE POSH ACT & ITS FEATURES VIZ-A-VIZ VISHAKA GUIDELINES, (last visited Jan. 7,2024), https://acumenjuris.com/article-single.php?id=36
Nitish Desai and Associates, Prevention of Sexual Harassment at Workplace, (last visited Jan. 8,2024), https://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research_Papers/Prevention_of_Sexual_Harassment_at_Workplace.pdf

^[1] Indian Penal Code,1860e § 354A, No. 1, Acts of Parliament, 1860 (India).

^[2] Indian Penal Code,1860e § 354B, No. 2, Acts of Parliament, 1860 (India).

^[3] Indian Penal Code,1860e § 354C, No. 3, Acts of Parliament, 1860 (India).

^[4] Indian Penal Code,1860e § 354D, No. 4, Acts of Parliament, 1860 (India).

^[5] INDIA CONST. art. 14

^[6] INDIA CONST. art. 19

^[7] INDIA CONST. art. 21

^[8] Ministry Of Women And Child Development, Handbook on Sexual Harassment of Women at Workplace 17 (2015)

^[9] Ministry Of Women And Child Development, Handbook on Sexual Harassment of Women at Workplace 17 (2015)

^[10] Vishaka & Ors. V/S State of Rajasthan (Air 1997 Sc 3011)

^[11] Apparel Export Promotion Council v. Chopra, A.I.R. 1999 S.C. 625

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